The opinion of the court was delivered by: MARSH
After the testimony was closed in the above habeas corpus case, William H. Heagy, one of relator's witnesses, was shot and killed. While he languished in the hospital, it is alleged that he made a dying declaration under the influence of impending death, to the effect that his testimony given in this case was true. Relator seeks to reopen the hearing in order that he may supplement the record by proving this dying declaration. No authority is cited for this proposition.
The respondent opposes the petition to reopen and asserts that the proposed dying declaration would not be admissible in this case.
It has long been established that dying declarations are limited to prosecutions of the person or persons accused of murdering the declarant; their admission in evidence is confined to prosecutions for homicide. Pennsylvania Evidence, Henry, 4th Ed. § 452; Vol. 5, Wigmore on Evidence, 3d Ed. § 1432; Gadsden v. United States, D.C.D.Md.1944. 54 F.Supp. 151.
Accordingly, the petition to reopen will be denied.
On Petition for Writ of Habeas Corpus
Additional Findings of Fact
The Court of Appeals, 208 F.2d 565, remanded the above cause 'for a finding of fact whether the court credited the testimony of the police officer [William H. Heagy] or the prosecutor [Samuel Strauss] as to what the former told the latter before trial about the condition of the accused at or about the time of his arrest.'
At the hearing in June, 1953, Police Officer Heagy testified in substance that he told Assistant District Attorney Strauss on two occasions prior to trial that, at the time he participated in making the arrest, the relator was 'crazy * * * you couldn't get any talk out of him. He was incoherent. He wouldn't answer us. * * * his shirt was all open. He was soaking wet with perspiration. His hair was all tossed about. His eyes were all red, and mucous and froth from his mouth was running down the front of his body. He seemed loose-jointed. The man was insane.' June Testimony, pages 14, 18, 20, 21, 28, 29.
Strauss categorically denied that Heagy had so informed him.
The court, faced, as it seemed then, by the opposing oaths of two reputable public servants, did not credit one over the other, but felt such a finding was not necessary to dispose of the petition. Because of the requirement that this issue should now be determined, the court requested that all available testimony thereon be produced, including testimony which might enable it to judge of the credibility of these two officials. Consequently, considerable testimony was taken; the matter was thoroughly argued and briefs were submitted by both sides. After due consideration, the court makes the following
1. The relator has failed to establish by the preponderance of the evidence that the police officer, William Heagy, prior to trial, specifically informed Assistant District Attorney Samuel Strauss in the manner and form as testified by Heagy at the hearing held in June 1953. He did not inform the prosecutor that the relator appeared and acted extremely drunk, incoherent or insane.
2. Mr. Heagy did inform the prosecutor that he participated in the arrest of the relator in a barroom where the latter had been in a brawl and had been disarmed. He further informed Strauss, as the latter admits, that the relator was at that time under the influence of liquor to a quarrelsome degree; that he smelled the odor of alcohol on him; that his shirt and clothes were torn; and that he was perspiring and 'messed up.'
3. The prosecuting officers did not communicate to defense counsel or to the State trial judge prior to trial that, at the time of relator's arrest, several police officers detected the odor of alcohol on relator's breath; that he showed signs of having been engaged in a fight; and that at least one ...